As the United States Army Corps of Engineers (ACOE) and Environmental Protection Agency (EPA) continue the tortured quest to define “Waters of the United States” (WOTUS), the late Justice Antonin Scalia may be heard chuckling from his grave. For the past year and a half, the rule1 promulgated by the EPA and ACOE to define WOTUS has been languishing in legal limbo. Recall that in 2014, the EPA and ACOE jointly proposed a new rule to once and for all clarify the definition of WOTUS, particularly as it applies under the Clean Water Act to streams, wetlands, ditches, and isolated waters. That rule was the long-awaited response from the federal government to the Supreme Court’s 4-1-4 decision in Rapanos v. United States2, in 2006. In that decision, the court struck down the federal agencies’ determination of jurisdictional “Waters of the United States.”

Joseph Rapanos, a Michigan developer, had drained and filled 22 acres of wetlands that he owned to construct a mall. He claimed that the wetlands were 20 miles from any traditional navigable water of the United States, and therefore “isolated.” The ACOE claimed that despite the 20-mile distance, there was a connection between the wetlands and the navigable water through a connection of streams, wetlands, and ditches. Rapanos was charged in criminal and civil actions for filling jurisdictional wetlands without authority, and he appealed the civil action all the way to the Supreme Court. The Court found that Rapanos had not discharged into jurisdictional waters, but the decision was 4-1-4. Justice Scalia, writing for the plurality siding with Mr. Rapanos, found that the Clean Water Act confers jurisdiction over non-navigable waters only if they exhibit relatively permanent flow, such as a river, lake, or stream, and have distinguishable beds, banks, and ordinary high water marks, and flow downstream. Justice Scalia’s opinion said that wetlands could only be jurisdictional if there is a continuous surface water flow connection between them and a permanent water body.

Justice Kennedy, writing alone and siding with Mr. Rapanos, rejected the continuous flow standard in the Scalia opinion and said that a wetland is jurisdictional if it bears a significant nexus to a traditional navigable waterway. According to Justice Kennedy, that nexus exists where the wetland, either by itself or in combination with other similar wetlands, significantly affects the physical, biological or chemical integrity of the downstream navigable waterway.

In the past 11 years since the Rapanos decision, all three branches of government have wrestled with trying to determine the jurisdictional reach of WOTUS. Courts ruling on jurisdictional issues have split on whether to apply Justice Kennedy’s standard, Justice Scalia’s standard, or both. The Supreme Court declined to grant certiorari for any lower court jurisdictional decisions. Congress attempted unsuccessfully twice to amend the Clean Water Act to clarify the WOTUS definition. EPA and ACOE both issued guidance documents attempting to give deference to both standards, but those efforts only resulted in the government spending more time on case-by-case jurisdiction determinations than spent issuing permits and authorizations.

Finally, in 2014, the new rule was proposed. It included both the Scalia and Kennedy standards. Appeals challenging the rule were immediately filed in various federal jurisdictions throughout the United States. A Judge in Federal District Court for the District of North Dakota determined that the District Court had jurisdiction to hear the appeal and issued an order staying enforcement.

On October 9, 2015, the Sixth Circuit U.S. Court of Appeals ruled in a 2-1 decision that the stay should apply to all 50 states. Opponents of the stay raised the issue of whether the Court of Appeals, rather than the District Court, was the proper venue to hear a challenge of the federal regulation under the Clean Water Act. The Sixth Circuit subsequently ruled that jurisdiction in the Court of Appeals is proper under the Clean Water Act. That decision is now up on appeal to the U.S. Supreme Court, with oral argument delayed until the Supreme Court’s October session. Interestingly, environmental groups supporting the proposed rule have chosen not to participate in the jurisdiction appeal. They have instead chosen to wait until the procedural issues have been resolved, and plan instead to participate in the arguments on the merits of the rule.

To complicate matters further, President Donald Trump issued an executive order on February 28, 2017, directing the EPA and ACOE to rescind or revise the WOTUS rule in a matter consistent with the following policy:

It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

The executive order steers away from Justice Kennedy’s “significant nexus” standard, and instead directs the government agencies to base reconsideration of the rule on Justice Scalia’s “continuous surface water flow connection” standard.

President Trump’s directive raises the question of whether the Supreme Court case should go forward. Some argue that if the current proposed rule is rescinded, the jurisdiction issue before the Supreme Court becomes moot. Others argue that the jurisdiction issue is separate from the merits of the actual proposed rule itself, and that the jurisdiction issue should be settled to provide direction for challenges of any new rule issued as a result of the executive order.

This much we know. We will not have a clearer definition of WOTUS anytime soon, and the Trump administration favors a definition following the continuous surface water flow connection standard. Rest in peace, Justice Scalia. Rest in peace.